Saturday, December 31, 2011

We are so grateful to Felicia Kornbluh for joining us for the month of December, and sorry to see her go. She has commented on the stature of Feminist Legal History (here and here), pondered the legacies of "legal history from below," reflected on teaching college students about the War on Terror (here and here), and kept us abreast of the "politics of kale." Thank you, Felicia!

The editors of Time chose to celebrate "the protester" as the magazine's "Person of the Year" for 2011. The editors explained their unconventional choice (last year Time named Facebook's Mark Zuckerberg Person of the Year) this way:

No one could have known that when a Tunisian fruit vendor set himself on fire in a public square, it would incite protests that would topple dictators and start a global wave of dissent. In 2011, protesters didn't just voice their complaints; they changed the world.

Read more about Time's selectionhere. One can find similar year-end reminiscences celebrating the global protest movements in numerous other news magazines and newspapers.

Consider how those pieces compare to the much less sanguine and much more substantive analysis of the recent protest movements offered by Alasdair Roberts (Suffolk--Law & Public Policy) in the Boston Review. Roberts argues that Occupy Wall Street has been "contained" through use of the police power. He also analyzes American protest movements' encounters with local police forces from a historical perspective. Here's an excerpt:

Throughout Europe, this is the season of protest. There are massive, angry demonstrations—tens of thousands in the streets of a dozen capitals laying siege to finance ministries and parliaments, shutting down roads and rail, and seizing public spaces. ...

Americans have reasons to be outraged too. But American protests have been muted by comparison. ... After decades of increasingly sophisticated policing and changing notions about the boundaries of legitimate protest, public demonstration in the United States today is not only tamer than in Europe, but perhaps also tamer than at any time in the nation’s history.

For a challenge to the view that local police have "shut down" OWS, see this Wash. Postopinion piece by Gina Glantz. OWS in fact has proliferated, the author argues, notwithstanding its supposed "containment" by police under color of health, safety and welfare laws.

Thursday, December 29, 2011

Here's a roundup and a bit of commentary about recent history-related stories in the news.

Archivists are busy documenting the rise and evolution of Occupy Wall Street. According to the Wash. Post, over "a half-dozen major museums and organizations from the Smithsonian Institution to the New York Historical Society" are engaged in a "collecting frenzy" of anything Occupy-related, including tweets. Perhaps it should come as no surprise that in this fraught political environment, the archiving effort has precipitated controversy. Members of OWS object to the presumption that mainstream organizations such as the Smithsonian and the National Museum of American History can and should interpret Occupy's history. OWS members want to tell their own story; in an effort to "own the OWS narrative" members have begun their own archival collection. A different controversy emanates from critics who claim that the rush to document OWS by mainstream organizations--particularly the Smithsonian--reflects a liberal bias. "It looks like taxpayer-funded hoarding, as opposed to rigorous historical collecting," argues Tom Fitton of Judicial Watch. In response to such criticism, Smithsonian officials point out that archivists there also have collected materials related to conservative causes, most notably, the Tea Party Movement. This response may not appease critics on the Right. It's not clear that the Smithsonian's collection of Tea Party-related material occurred as speedily as its OWS collection, or that there was as much interest in the Tea Party as apparently exists in OWS. Read all about the archiving efforts and the controversies surrounding them here,here, here, and here.

Politics, idiosyncratic subject matter interests, and resource limitations all can influence whose history is preserved, remembered, and disseminated. It's worth noting, however, that soon after its advent in March of 2010, the Tea Party Movement proved of great interest to prominent scholars and researchers. For instance, the movement is the subject of a book published in September of 2010 by the distinguished historian, Jill Lepore. In The Whites of Their Eyes: The Tea Party's Revolution and the Battle Over American History, Lepore interrogates the movement's historical claims about the Founding and finds much of the party's rhetoric inaccurate or oversimplified. Another take on the Tea Party is offered by political scientists Theda Skocpol and Vanessa Williamson in The Tea Party and the Remaking of American Conservatism, to be published in January of 2012. This work reveals tensions between Tea Party members' professed anti-government ideology and their support for popular governmental programs such as Social Security and Medicare. These books, among other recently-published scholarship noted on this blog here (Corey Robin's Reactionary Mind), here (JAH Roundtable on Conservatism), and here (Mark Tushnet's Review of Teles, Rise of the Conservative Legal Movement), just to cite a few examples, suggest that conservative causes are popular subjects of scholarly inquiry and of immense interest to the literate public. Knowledgeable archivists at the Smithsonian and elsewhere presumably will, of necessity, and certainly should give these social and legal movements adequate attention.

The November, 2011 edition of Outlook, the newsletter of the Organization of American Historians, reported on the Executive Board's response to a call from the Office of Human Research Protections, a division of the U.S. Department of Health and Human Services, for comments on the "Common Rule," which mandates Institutional Review Board oversight of research by recipients of federal funding. The Board unanimously recommended that "the work of historians, especially oral historians, should be exempt from the purview of institutional review boards." Find the OAH statement here.

The postwar civil rights movement continues to produce newsworthy items. One recent story concerned civil rights-era cold cases. One such case involves the mysterious deaths of Florida NAACP official Harry T. Moore and his wife, Harriette Moore. Harry Moore's investigations of lynchings and his outspoken criticism of local law enforcement made him a target of white supremacists. Moore was murdered on Christmas day in 1951-- [n]early 12 years before Medgar Evers was fatally shot, 14 years before Malcolm X was slain and 17 years before Martin Luther King Jr. was assassinated. Read about the case and one of the nation's earliest martyrs for the cause of civil rights here;also see this related photo gallery.

In an opinion that the N.Y. Times' Adam Liptak called "an extraordinary about-face," the U.S. Court of Appeals for the Eleventh Circuit reversed course in an employment discrimination case in which several veterans of the civil rights movement submitted an amicus curiae brief. The most arresting facts in the case turned on a single word: "boy." On several occasions, black male plaintiffs alleged, the white manager of a Tyson Foods operation in Gadsen, Alabama called black male employees "boy," indicating racial animus. A jury agreed with plaintiffs' view of the case, but the appeals court overruled the jury's verdict. In a 2005 opinion the Eleventh Circuit explained that the use of "boy" without a modifier (e.g. black boy) did not constitute evidence of discrimination. The U.S. Supreme Court reversed the appeals court in a unanimous 2006 opinion. "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign," wrote the Court in a per curiam opinion. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage."

This past month, after years of additional litigation, the Eleventh Circuit finally issued an opinion consistent with the Supreme Court's 2006 decision. The about-face followed "unflattering news coverage," the possibility that the full Eleventh Circuit would "rebuke" the panel, and the filing of the amicus brief by prominent civil rights leaders, including Hon. Andrew Young and Rev. Fred Shuttlesworth. The brief argued that history, custom, social context and precedent all indicate that the word "boy," when directed by whites to black men, presumptively is racially derogatory. It cited works of history and literature as well as ephemera from the civil rights era, most notably the famous "I Am A Man" posters donned by many civil rights protesters. For more on the cultural significance of these posters, see Steve Estes's book, "I am a Man: Race, Manhood, and the Civil Rights Movement."

Peter Birkenhead's critique of Southern plantation tours, "Why We Still Can't Talk about Slavery," published on Salon.com, is well worth a read. On the tours, he claims, "Civil War culture is presented as 'authentic.' They just leave out the slavery part." Here's an excerpt:

Our guide, in a tone equal parts admiring and envious, devoted 90 minutes to the armoires, linens and chamber pots of the home, but almost no time to the people who built, creased and cleaned them. The words “slave” and “slavery” were never mentioned.

Birkenhead's provocative article poses big and important questions about how citizens choose to remember a painful past that still is relevant. His wide-ranging commentary moves from a discussion of slavery to a consideration of the novel and motion picture, The Help, the Holocaust, and the Tea Party, among other matters.

Mulberry Row, courtesy of Thomas Jefferson Foundation

Birkenhead's trenchant commentary brings to mind an important project underway at Monticello: the restoration of Mulberry Row, location of some of the slave quarters on President Thomas Jefferson's plantation. The restoration will make the experiences of slaves more prominent in visitors' tours of Monticello. Susan Stein, Senior Curator & Vice President for Museum Programs at Monticello, explains in a recent article: “We don’t shy away from slavery, we talk about slavery because we know that it’s fundamentally important to understanding Jefferson and understanding America.” For more on the vast restoration project, see "Bringing Back Mulberry Row," a blog post by Stein.

In the 1840s, state legislatures began modifying the law of marital status to ease the economic distress of widows and children at the family breadwinner's death. Insurance-related exceptions to the common law doctrine of "marital unity" under coverture permitted married women to enter into insurance contracts and protected life insurance proceeds from their husbands' creditors.

These early insurance-related statutory exceptions to coverture introduced an important theoretical question that persisted for the rest of the nineteenth century - and into the next - as broader legal and social reforms took hold. How could equality of contract for married women be reconciled with the traditional dependencies of the home? Equality of contract also introduced the practical economic problem of how the lives of women could be valued apart from their husbands when the law otherwise enforced their economic dependency.

The theoretical and practical issues were resolved for life insurance and annuity contracts, the Article argues, by an increased emphasis on "natural" differences between men and women when those differences comported with traditional gender status hierarchies and dependencies. Gender-distinct mortality tables and higher rates for coverage of women first appeared in annuity contracts used to fund lifetime financial support independent of or as a substitute for marital rights. Gender-merged tables and unisex rates generally prevailed, however, in life insurance contracts used to protect wives and children from the family breadwinner's death, a more traditional pattern of household dependency. Gender-distinct rates thus tempered, in both symbolic and practical/economic terms, the equality of contract recognized by the statutory exceptions to coverture. The selective adoption of gender-distinct insurance rates during the first wave of woman's rights activism illustrates the role played by marketplace contracts in reinforcing the traditional status relationships and dependencies of the home.

Wednesday, December 28, 2011

Via H-Law, we have a review of Polemical Pain: Slavery, Cruelty, and the Rise of Humanitarianism (Johns Hopkins University Press), by Margaret Abruzzo (University of Alabama). According to reviewer Mark J. Fleszar (Georgia State University), the book "recasts the otherwise familiar antebellum
debates over slavery as part of a dialectic struggle to define the very
meaning of humaneness itself in an era searching for 'moral clarity.'" Unlike the "many recent studies that focus on either proslavery or
antislavery in isolation," Fleszar notes, "the present work focuses on national rhetoric
and demonstrates the ways in which 'new ideas about humaneness and
cruelty pressed Americans to rethink the institution of slavery.'"

After providing useful chapter summaries, Fleszar concludes that "[r]eaders will find much to ponder, and perhaps much to quarrel with, throughout Abruzzo's text." Possible points of controversy include Abruzzo's "conception of the sectional controversy" and her "surprising lack of discussion about the law regarding humaneness." Overall, however, the book is "well researched and impressively
argued." In Fleszar's view, it "greatly advances our knowledge about the national
quarrel about slavery through the language of humanitarianism."

Tuesday, December 27, 2011

Our friends at H-Law have posted a review of Joseph Francis Zimmerman, Horizontal Federalism: Interstate Relations (Albany State University of New York Press). According to reviewer John Dinan (Department of Political Science, Wake Forest University), the book provides a "comprehensive and detailed analysis of a relatively neglected aspect of the field of intergovernmental relations." Some "chapters examin[e] specific constitutional clauses," such as the interstate compact clause and the privileges and immunities clause. Others focus on "particular problems of governance" -- e.g., "interstate trade barriers, economic competition, and tax revenue competition."

Dinan finds the book especially useful for "situating . . . key Supreme Court rulings in historical and analytical context, examining many other less familiar rulings, and exploring the many instances of interstate conflict and cooperation that have not generated judicial rulings but have nevertheless figured prominently in the resolution of policy questions throughout American history." Read on here.

Monday, December 26, 2011

“Rape in Medieval England: A Legal History, 1272-1307,” an M.A. thesis completed by Stephanie Brown at Emory University in 2009, is available on-line. Here is the abstract:

This thesis explores the legal history of rape prosecutions in thirteenth and fourteenth century England. Section I explicates the apparent paradox between chapter 34 of the Statute of Westminster II’s classification of rape as the most serious type of crime known to English law and the numerous difficulties that women faced when prosecuting men for rape under its stipulations. Section II shows that Edward was partially responsible for chapter 34 of Westminster II’s failure to facilitate royal court prosecutions because Edward never intended to protect his female citizens through rape legislation. Thus, royal judges were able to disregard Edward’s rape laws and acquit rapists with impunity. Section III establishes that Edward was also partially responsible for Westminster II’s inability to prevent local court jurors from ignoring the stipulations of chapter 34 because Edward did not enact safeguards to thwart jurors’ attempts to discriminate against rape victims. Section IV demonstrates that because of misogynistic cultural influences, thirteenth and fourteenth century local court jurors discriminated against rape victims. Section V explains how male jurors assembled procedural barriers such as virginity tests and rigorous pre-trial processes as a way of deterring rape victims from appealing the men who raped them and destroying the cases of women who tried to prosecute men for rape. Hence, local court jurors were also responsible for the difficulties that women faced when attempting to prosecute men for rape. Section VI shows that male jurors deterred women from appealing men of rape and dismissed rape cases by citing plaintiffs’ occupations or reputations to convict plaintiffs of false appeal. Finally, this thesis concludes that jurors’ treatment of female plaintiffs provides a lens through which the position of women in medieval English society can be understood. Moreover, this thesis argues that men discriminated against rape victims because many men were resistant to the anomalous idea that women could prosecute men for rape. Thus, when Edward I granted women the right to do so, men systematically eliminated women’s abilities to appeal men of rape by actively subjugating women in rape prosecutions.

This paper uses a review of Nancy MacLean's Freedom Is Not Enough: The Opening of the American Workplace (2008), to challenge historians to re-integrate law and legal institutions into the civil rights history. It critiques recent work in the social history of the civil rights movement for ignoring litigation and legal institutions, and/or regarding them as an impediment to social movement organization. Recent political-science inspired work that examines civil rights history, by contrast, has focused on the Supreme Court rather than social movement organization. The paper argues that recent work by Risa Goluboff, David Engstrom, Sophia Lee, Paul Frymer, and Kenneth Mack points the way for scholars in reorienting the legal history of the civil rights movement away from the NAACP's school desegregation campaign and toward the struggle for economic citizenship. As such, the paper argues, such work provides a model for re-integrating law into the social history of the civil rights movement.

The National Constitution Center's traveling exhibit, "Lincoln: The Constitution and the Civil War," has reached the Cleveland-Marshall College of Law. Thanks to the CMCL Library, you can view the curator's introduction, here. As the CMCL librarians explain, the exhibit is

an examination of how President Lincoln used the Constitution to confront three intertwined crises of the Civil War - the secession of Southern states, slavery, and wartime civil liberties. The materials highlighted in this guide offer opportunities to further explore the exhibition's themes and assess how Lincoln’s struggles still resonate with constitutional issues today.

Cleveland-Marshall will celebrate the opening of the exhibit with three lectures by CMCL professors on Thursday, January 19, from 4:00 to 6:30, delivered in the school's moot court room. David Forte will present a talk on how the Civil War experiences of two soldiers, Albion W. Tourgee, and John Marshall Harlan, affected their attitudes toward segregation in their post war legal careers and jurisprudence. Dennis Keating, who holds a joint appointment with CMCL and the the Levin College of Urban Studies, will examine Lincoln’s suspension of the writ of habeas corpus in the interest of national security. In "Black and White and Re(a)d All Over: The Role of Early Cherokee Newspapers in Promoting the Cherokee Practice of Black Slavery,” Professor Lolita Buckner Inniss will trace “the history of African-ancestored slavery among the Cherokee and the way it was promoted in early Cherokee newspapers, especially in the period leading up to the war, and examines slavery practices under the Cherokee constitution versus the U.S. constitution.”

Thursday, December 22, 2011

I have had occasion to revisit my thoughts about Kerber and the subfield of feminist legal history over the past two weeks. My university, the University of Vermont, has been in the national media because a group of feminists off-campus discovered a document that appears to be a questionnaire distributed to members or potential members of a fraternity. One question in a battery of diagnostic queries: "Who (sic) would you like to rape?" When an on-campus group sent me the document, I counseled patience, research, carefully formulated demands, etc. Perhaps inevitably, no one listened to me, and the document was soon made public, creating national headlines, an amazingly well-attended rally in the middle of finals week, and decisive action by the university administration and the national headquarters of the fraternity.

Aside from what may be excessive caution on my part, perhaps due simply to age, I wonder about the ways in which professional conditioning may have contributed to the gap between me and the students. I wonder whether others have observed gaps between our approach to sexual hierarchy, rape, domestic violence, abortion, and other "hot-button" feminist issues and the approaches taken by many of our feminist students. As a legal historian, I am accustomed to thinking that it is my job to frustrate my students, to teach them things they don't come to class wanting or thinking they need to know. As a feminist legal historian, I assume that it is my task to frustrate my feminist students, to slow them down, challenge their assumptions about women's vulnerability and about the ubiquity of what they term "rape culture" in modern societies. It's in my professional DNA (I think) to offer nuance, contingency, agency, unintended consequences, and the complex single case against what students know about contemporary data in terms of women's and men's experiences, and what they think they know about history. I don't find it very interesting intellectually to think about heterosexual male violence against women either in the past or the present, or to think about the role of all-male social organizations such as fraternities in the gendered structure of modern societies. But what if, at least some of the time, the students are right? Is it better for them to walk away from our scholarship or courses confused and with a sense of pure contingency than with the (perhaps simplistic) feminist anger that motivated them to sign up or buy the book in the first place? How can we make sure we're speaking to our students/readers, adequately representing what happened in the past, and pushing the debate in more subtle, complex directions?

At the ASLH meeting in November, I started to wonder if feminist legal historians were the new insiders within the field of legal history. Linda Kerber was our keynote speaker, for one, and she gave a rousing talk celebrated the subfield she has done so much to promote. At a conference that was somewhat thinly attended, I kept running into Jane Dailey, Nina Dayton, Sally Gordon, Ariela Dubler, Deborah Dinner, Sarena Mayeri, Felicity Turner, and other accomplished practitioners -- who have made a huge difference with their work, and most of whom have high-status jobs and are now training a new generation of scholars. Of course, the relative increase in our presence, or our visibility may be misleading (maybe the feminist legal historians stand out because they dress better than other scholars? maybe we happened to attend the conference in Atlanta disproportionately because we wanted to honor Kerber?). But if we are increasingly insiders in the field, it is also legitimate to ask whether this is an entirely good thing -- and what we will do to bring those who are currently outsiders, or more marginal members of the consorority (?) inside. Where is the new cutting edge? And how do we continue to make progress on the agenda Kerber outlined -- one that is symbolized for me by the continuing absence, which Kerber mentioned, of such important cases as Goesaert v. Cleary (1948), a devastating loss for advocates of women's employment rights, from legal history, constitutional history, law, and political science teaching and texts -- while making the tent bigger and the legal history field more theoretically encompassing?

Wife abuse was much in the public eye in the nineteenth century. Throughout the century a large but unknown number of wives sought to preserve their lives by abandoning their homes. It was never easy, but at least some were not themselves abandoned by the courts, which dealt with the many issues raised: for example, whether relatives and neighbors were allowed to assist them and even encourage them to flee. Fortunately, the American Revolution inspired a judicial belief that problems could be solved. Equity courts flourished and the chancellors who presided felt comfortable acting where the law was silent. More and more over the course of the century, and over a widening area, chancellors and common law judges could be heard to denounce both wife abuse and the abusers. By the end of the century, they had come to reject any notion that a wife's provocation justified or excused abuse, that one who was not without fault forfeited her right to be free from violence, that staying with an abuser was condonation. Through judicial activism, some wives found safety and support.

San Francisco State University, which for years has hosted the SFSU Rights Conference originated and planned by H-Law's own Chris Waldrep, has had to take the difficult decision to postpone the 2012 Conference previously announced. The Conference's planning committee has reluctantly decided that a postponement is in the best interests of the Conference and those who take part in it, and is also a sign of respect for the pivotal role that Chris Waldrep has played in each of these conferences since the program began. The committee expresses the earnest hope that Chris will be well enough in 2013 to attend that year's conference, which will address the theme of "Emancipation" (previously selected for the 2012 conference), whether or not he is able to assist in its planning and organization. Like all other friends and admirers of Chris Waldrep, the members of the planning committee extend their best wishes to him and his family for a speedy and full recovery.

Via Ex Tempore, we have word of a new release on Irish constitutional history: The Origins of the Irish Constitution 1928-41 (Royal Irish Academy). Here's the publisher's description:

The Constitution of 1937 represents the culmination of the
‘constitutional revolution’ begun by Eamon de Valera, John Hearne and
others in the 1930s. Marking the 75th anniversary, the Origins of the
Irish Constitution is a comprehensive selection of key documents
relating to the development and drafting of the Constitution. The
documents have been collected from a variety of archival holdings,
covering the period 1929 to 1941. Gerard Hogan has written an extensive
commentary and annotation as a guide to the complex legal and
philosophical problems that arose during the drafting process.

. . . The documents include
correspondence among the drafters, minutes of committee meetings,
significant judgments on the Free State constitution, and earlier drafts
of the Constitution. These documents come mainly from the National
Archives and the de Valera Papers (held at UCD). The book also includes
commentary to explain the contents of the 300+ documents. As you might
have gleaned from the title, the coverage isn’t limited to 1936 and
1937: rather, it puts the Constitution in a wider context, stretching
from 1928 to the Second Amendment of the Constitution in 1941. The
project was directed by (now-judge) Gerard Hogan; Research Assistant
Eoin Kinsella did much of the hard work; Professor Ronan Fanning edited
the materials down to size.

The book should be extremely useful for anyone seriously interested
in the Irish Constitution. . . .

The Federated Department of History at Rutgers University-Newark and New Jersey Institute of Technology invites applications for a tenure-track position at the rank of assistant professor, based at NJIT, to begin September 2012. Applicants should be able to present evidence of scholarly accomplishment and effective teaching and should have a Ph.D. with a primary research field that focuses on legal history/policy. They should also have an aptitude for program administration, as the holder of this position will serve as associate director of the department’s growing new degree program in Law, Technology and Culture. Time period and geographical area of scholarly expertise are open, but preference will be given to applicants who can contribute to the department’s M.A. concentration in the history of technology, environment, and medicine/health. NJIT and the Newark campus of Rutgers University are located across the street from each other in the University Heights section of Newark, with easy access to the entire metropolitan New York-New Jersey area.

Send letter of application, C.V., writing sample, sample syllabi, and three letters of recommendation as directed at njit.jobs, posting # 0600782. Review of applications will begin in January 2012 and will continue until the position is filled. NJIT is an Equal Opportunity Employer M/F/H/V.

Tuesday, December 20, 2011

The editors of Law & Social Inquiry announce the 2012 Graduate Student Paper Competition. LSI invites nominations of student work from faculty as well as direct submissions from graduate and law students. The announcement follows.

The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of sociolegal studies written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted starting January 1, 2012 and must be received by March 1, 2012.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper, and contact details for the student. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US). Submissions will be judged by the editors. The winning submission will be sent to selected scholars for advisory reviews to aid with revisions
prior to publication.

Please send your best work in Microsoft Word or as a PDF to lsi-abf@abfn.org. Please indicate (1) your intention is to be considered for the prize competition; (2) confirm your current graduate student status; and (3) that the paper is a sole submission to Law & Social Inquiry, meaning that you have not submitted it to other journals for potential publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once it has been accepted by our office.

Submissions must include a title page with a complete mailing address, e-mail address, and phone number(s). The second page should include a 100-150 (maximum) word abstract. Beginning on the third page all pages should be paginated. Text, footnotes, endnotes, and references should be double-spaced, in Times New Roman 12 font, with 1.5” margins on all sides with no headers or footers. Properly formatted submissions must be no more than 60 manuscript pages.

For additional information visit us on the web. To contact our office directly, email us at lsi-abf@abfn.org or call (312) 988-6517.

At the end of the 19th century, internationalisation and standardisation fundamentally changed business law. More and more industries such as insurance, transport, wholesale and finance used standard contracts and clauses for international transactions. An impressive example of this development was the reaction of the insurance industry to the earthquake and inflagration of San Francisco in 1906. At once, a global discourse on the economic, technical and legal consequences arose; in the meantime, a small group of powerful reinsurance managers developed a strict exclusionary clause intended for worldwide application. Fire insurers in many countries adopted this "earthquake clause", while others refused it. Germany, California and Italy - where the earthquake of Messina in 1908 led to a legal turn - are paradigmatic examples of these reactions. Beyond this case study, the author discusses the novel phenomenon of international standard contracts and clauses from a theoretical perspective.

Monday, December 19, 2011

Congratulations to Daniel J. Sharfstein, Vanderbilt University Law School, who has won this year’s Association of American Law Schools Scholarly Paper prize for "Atrocity, Entitlement, and Personhood: The Value of Violence in Property Law." Sharfstein presented at this year's annual meeting of the American Society for Legal History; I take the following abstract from the ASLH's website:

"Atrocity, Entitlement, and Personhood in the American Property Tradition” examines how Americans have thought about property that they have committed atrocities to acquire and own. Scholars such as Gregory Alexander, Joseph Singer, and others have described property ownership as a core component of the “American dream,” embodying a set of social relations and civic republican ideas that ultimately promote “life and human flourishing, the protection of physical security, the ability to acquire knowledge and make choices, and the freedom to live one’s life on one’s own terms.” In contrast, my paper argues that the American property tradition was forged in a crucible of atrocity. Focusing on historical examples including the Native American genocide (in particular, King Philip’s War), slavery, and lynching, my paper examines how Americans have traditionally understood and justified atrocities through their property. Committing atrocities related to the acquisition and ownership of property leads people to develop strong “personhood” connections to it. Drawing upon Margaret Jane Radin’s classic formulation of the “personhood value” of property, a theory closely related to the notion of a progressive American property tradition, I argue that atrocities have boosted the personhood investment in property, which in turn has functioned to absolve owners of the inexcusable circumstances of acquisition and use. For twenty-five years, personhood in property has been celebrated for affirming civil and human rights and embodying a comforting alternative to efficiency and labor-driven accounts of property rights. “Atrocity, Entitlement, and Personhood” questions the theory’s political valance. Establishing a fundamental connection between property’s “human flourishing” values and its violent past, I suggest a hidden value in American property doctrine that impedes the progressive agenda and urge progressive property scholars to focus more on distributive justice.

There is synergy between the "Long Civil War" concept that I discussed last week and recent literature on state and local politics during the late 1960s and 1970s. The works that I have in mind examine how white politicians, civic groups, and average citizens responded to civil rights era-activism. Consider White Flight: Atlanta and the Making of Modern Conservatism by Kevin Kruse. The title and cover photo capture Kruse's argument. The book discusses how reactionary white racial attitudes influenced local politics well after the passage of landmark civil rights legislation. The Ghost of Jim Crow, by Anders Walker, discusses how Southern governors used "moderate" tactics to preserve segregation. Also see Matthew Lassiter's The Silent Majority: Suburban Politics in the Sunbelt South, a regional account of resistance to school and housing desegregation by President Nixon's "silent majority." Lassiter does not emphasize attitudinal racism; he is more interested in how Nixon leveraged the racially neutral concept of "colorblindess" and fiscal conservatism to win office. Jason Sokol's book, There Goes My Everything, is a must read. The author discusses white resistance to, as well as "pragmatic acceptance" of, civil rights-era racial changes. Sokol's nuanced work challenges the idea that most white Southerners uncritically embraced reactionary racial attitudes.

My sense that the "Civil War" need not be understood as the series of battles that occurred between 1861 and 1865 also resonates with scholarship that argues, in the foreign relations context, for a more sophisticated understanding of military engagements and their domestic impact. I'll direct our readers to Mary Dudziak's forthcoming book, War Time: An Idea, Is History, and Its Consequences, which observes that "America has been engaged in some form of ongoing overseas armed conflict for over a century." "Meanwhile," she argues, "policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times." You can view Dudziak's recent talk re-conceptualizing wartime and connecting it to the work of the distinguished historian, John Hope Franklin, at a lecture that she gave at Duke University, where she is the John Hope Franklin Visiting Professor of Law, here.

Sunday, December 18, 2011

In the pages of The New Republic: The Book, Howard Markel reviews The Origin of AIDS(Cambridge University Press), by Jacques Pepin. Here's a taste:

Jacques Pepin, a professor of microbiology and infectious diseases at Canada’s Université de Sherbrooke, has tracked the HIV virus in sixteen African nations over the past three decades. He also possesses an encyclopedic command of the world’s literature on HIV/AIDS. Combining his vast experience and knowledge, Pepin has written a model study of epidemiology, microbiology, genetics, and social and cultural history.

Drawing on "a completely different archive than those far more familiar to most historical scholars," including "vast collections of blood samples" from the '50s, '70s, and '80s, Pepin shows how the disease was originally transmitted and spread. Read more here.

Also in TNR:

Eric Posner reviews Unpopular Privacy: What Must We Hide?(Oxford University Press), by law and philosophy professor Anita Allen. In Posner's words,
the book argues "that people do not care enough about their privacy,
and that, in limited circumstances, the government should force people
to keep information private that they would rather disclose."

Samuel Helfont reviews Awakening Islam: The Politics of Religious Dissent in Contemporary Saudi Arabia (Harvard University Press), by French political scientist Stéphane Lacroix. "If the history of Saudi Arabia teaches anything," Helfont concludes, "it is that Western social scientists often miss the mark when assessing where the Middle East is headed. While it would be tempting to assume that the Saudi monarchy will fade into the ancient sands of the Arabian Peninsula, destined to be replaced by a more modern and democratic state, it would be incredibly dangerous to do so.

In the book pages of the Washington Post, Joyce Appleby reviews American Emperor: Aaron Burr’s Challenge to Jefferson’s America (Simon & Schuster), by David O. Stewart. Appleby praises Stewart's ability to "convey[] the restlessness, resentment and unmoored fancies that prevailed among the men who had gone west to make their fortune while France, England and Spain continued to jockey for position in the New World." Regarding Burr's famous treason trial, Appleby notes that "Stewart makes a convincing case for Burr’s guilt." Read on here.

Gillon v. MacDonald (1878) was the climax of a feud that caused division in, and undermined the reputation of, the early New Zealand legal profession. Gillon features one of the most controversial episodes of contempt of court by a barrister in colonial legal history. The nature of the New Zealand legal profession, and in particular the relationship between bench and bar, is exposed through the case, its prologue and its aftermath. The complex saga occurred over several years and involved all three branches of government. Its causes are open to debate, but this article argues that personal and professional rivalry lies at the heart of the saga, and in particular, an obsessive vendetta on the part of George Elliot Barton. The events described in this article had far reaching consequences including possibly influencing New Zealand's most infamous legal decision, Wi Parata v. Bishop of Wellington (1877).

In an article published in 2008, I suggested that anxieties about homosexuality and its policing lay behind and helped to shape the criminal procedure decisions of the Warren Court - in particular, the landmark Fourth Amendment ruling in Katz v. United States. Katz is the telephone eavesdropping case in which the Supreme Court famously declared that the Fourth Amendment protects "people, not places"; it is the basis for the modern rule that whether police activity constitutes a "search" under the Fourth Amendment depends on whether it intrudes on a reasonable expectation of privacy, not on whether it involves a physical trespass. I argued in 2008 that when deciding Katz at least some of the Justices may have had, in the back in their minds, the then-widespread police practice of spying on men in public toilet stalls to detect homosexual sodomy. Katz plainly helped to end that practice. I suggested that this result was one that the Court, or at least some of its members, would have foreseen and welcomed, but that it was not something the Court felt comfortable addressing directly.

When my article was published, the papers of Justice Potter Stewart, the author of the Court's opinion in Katz, were still under seal. Pursuant to Justice Stewart's directions, they became public with the retirement of the last Justice to have served with Justice Stewart. That turned out to be Justice Stevens, who stepped down from the Court in 2010. The Stewart Papers include the first draft of what eventually became the Court's opinion in Katz, and that draft contains a small bit of additional support - suggestive but very far from conclusive - for the argument I made three years ago. This short paper describes the new evidence and includes, as an appendix, a photographic reproduction of Justice Stewart's first draft in Katz.

Thursday, December 15, 2011

The AHA's annual meeting will be held in Chicago on January 5-8, 2012. Those interested in attending should note that the pre-registration window is closing. Registration rates increase on Monday, December 19. For more information, see the AHA's website.

With great interest I read an article in the Atlantic, "Why Do So Few Blacks Study the Civil War," by Ta-Nehisi Coates. The author questions black "alienation" from the Civil War. Here's an excerpt from Coates's thoughtful commentary:

The message has long been clear: the Civil War is a story for white people—acted out by white people, on white people’s terms—in which blacks feature strictly as stock characters and props. We are invited to listen, but never to truly join the narrative.

Coates encourages African Americans to claim the Civil War as their own. For his part, Coates developed a strong commitment to the study of the war, he informs his audience, after reading James McPherson's Pulitzer prize-winning Battle Cry of Freedom. Transformed, Coates is now, he says, a "Civil War buff." That is, he faithfully reads books about Civil War battles and visits Civil War battlegrounds, only to find himself the only black at these historic sites.

I'm afraid my impulse is to reject Coates's premise, or at the very least, to ask for a more precise definition of "war." In my view, many blacks do study the Civil War if "war" is broadly defined. If "the war" is taken to include its causes (e.g. slavery), its aftermath or consequences (e.g. Black Codes, vagrancy, Reconstruction, Jim Crow), or the people involved in the war and related matters (e.g. soldiers, abolitionists), then surely blacks take a strong interest in the Civil War and all that it means in American history. What interests them, I'd say, is the "long history" of the Civil War (to play on Jacqueline Dowd Hall's "long civil rights movement" metaphor). Only when war is defined as the narrow period between 1861 and 1865, the battles, battlefields and personalities of the period, is Coates's premise--that few blacks study the war--plausible.

The real question animating Coates's commentary, then, appears to be why there are so few black Civil War "buffs." That very different question is not one that I'm prepared to answer.

However, some "Civil War buffs" are coming to terms with the long history of the Civil War, as I've defined it. This past summer an organizer of events commemorating the sesquicentennial of the Civil War invited me to speak in Atlanta on the relationship between the civil rights movement and the Civil War. The organizer explained that he thought it important to tie the history of the Civil War to the history of the black freedom struggle: the two belong together. What's more, he noted that the history of the war should also be grouped with the history of black suffering after the war. Thus, Douglas Blackmon, author of Slavery by Another Name: The Reenslavement of Black Americans from the Civil War to World War II, also had been invited to present at the sesquicentennial events. Honored to receive the invitation, I could not accept it due to other commitments.

If I had accepted the invitation, how might I have connected civil rights to the Civil War? I could have turned to Atlanta's rich history, of course, as a point of departure for joining matters of war and rights with an exploration of local and national. But I also might have turned to the rich history of Georgia's neighboring state, the one where the first shots of the Civil War were fired.

The long history of the town of Edgefield County, South Carolina would have worked well for these purposes. The town is well known to historians of the South. It was the home of Confederate General James Longstreet, ten governors and many "fine" Southern families, including a "planter elite," according to Orville Burton, author of the Pulitzer prize-winning, In My Father's House Are Many Mansions: Family and Community in Edgefield County, South Carolina. The county's fine families included many lawyers who erected or worked to maintain the legal infrastructure of white supremacy following Reconstruction. Two stand out, both U.S. Senators. In the 1890s, Senator Ben Tillman, a former member of a paramilitary white supremacist group and then governor of South Carolina, called the 1895 constitutional convention that imposed Jim Crow laws and ensured black disfranchisement through literacy tests, poll taxes and the like. That story is told in Stephen Kantrowitz's prize-winning book, Bill Tillman and the Reconstruction of White Supremacy. Senator Strom Thurmond, the 1948 Dixiecrat presidential candidate, known both for his record-long filibuster against the Civil Rights Act of 1957 and for fathering a child with his family's African-American housekeeper, rose from Edgefield, as well. (His daughter, Essie Mae Washington-Williams, told her story in Dear Senator: A Memoir by the Daughter of Strom Thurmond).

During the mid- twentieth century, Edgefield County resisted racial change on an epic scale. It defied Brown v. Board of Education until the Department of Health, Education, and Welfare, armed with the Civil Rights Act of 1964 and a Supreme Court ruling, demanded change. Still, well into the 1970s, the county refused to meaningfully desegregate its schools. Blacks and whites attended separate classes. Whites displayed hostility to integration by retaining symbols of the Old Confederacy. The school band played Dixie at athletic contests. The Confederate Rebel served as the school mascot, and the Rebel flag flew on the school flagstaff. In a federal lawsuit, blacks argued that these emblems of the Confederacy constituted "badges and incidents of slavery" in violation of the Thirteenth Amendment.

Resistance touched other aspects of the town's life--into the 1970s. Edgefield totally excluded blacks from grand juries. It maintained segregated chain gangs. No blacks worked in county government well into the 1970s. Edgefield fought black political participation tooth and nail, long after the Civil War's official end. In a 1986 vote dilution case, Jackson v. Edgefield County, 650 F.Supp. 1176 (S.C. 1986), a federal district court found, "White supremacists" fought to preserve white rule through acts of "physical intimidation and violence" into the mid-twentieth century. Laughlin McDonald, the ACLU lawyer who successfully sued the county school board and county council for diluting the black vote, discusses the county's intransigence in a compelling first-person account, Civil Rights in the Modern Era: Edgefield County,
South Carolina, A Personal Reflection, 1 Stan. J.C.R. & C.L. 303 (August, 2005).

All told, Edgefield's history between the Civil War and the 1970s reveals remarkably little racial change. Literally speaking, the Civil War had ceased as of 1865. But the facts of life in this Southern county reveal it to be an excellent point of departure for exploring the long history of the Civil War.

I should acknowledge that I know this town and its fascinating political, social and legal history not only through research. I was born in Edgefield County, SC in 1970, and lived my first five years there.

In the 1960s a group of Brazilian legal educators dissatisfied with the state of legal education in their country sought support from the Ford Foundation and USAID for a project designed to spur reform. They created the Centro de Estudos e Pesquisas no Ensino do Direito (Ceped) and developed an innovative course in economic law. The project was initially successful but the course only lasted seven years: the project effectively came to and end in 1973 and the reform effort faltered. Thirty years later Brazil's prestigious Fundac Getulio Vargas (FGV) created new law schools in Rio and Sao Paulo: these schools looked back to Ceped for inspiration. The essay, written for an informal history of Ceped, reflects on this 40 year experience. It asks why Ceped failed to overcome the barriers to reform it faced in the 1970s and shows how, because of changed conditions in Brazil, FGV overcame them in the 21st century. The essay argues that democratization, liberalization, privatization, the globalization of knowledge, and a boom in corporate legal practice helped make the successful FGV experiment possible

[Sagafi-negad's] first task is to demonstrate historically how Quaker beliefs and practices have impacted their relationship to law in England (where the Religious Society of Friends began) and later in America. The first chapter is a primer on Quaker belief and philosophy; here, Sagafi-nejad explains the Friends’ “testimonies,” namely peace, simplicity, equality, and truthfulness. In living their beliefs, Quakers have often found themselves on the wrong side of the law and have endured persecution as a result. Next, she explains that, despite the Society’s traditional reluctance to “go to law,” some faithful Quakers have nevertheless done just that. At several points, she considers the conditions under which legal involvement may be necessary or at least acceptable – from the Quaker point of view - to achieve a greater public good. She illustrates how Quaker plaintiffs and defendants have repeatedly won expanded civil liberties not only for Friends, but for others as well. Indeed, she provides an array of legal actions involving Quakers, perhaps most famously, Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court case defining students’ free speech rights in conjunction with a black armband protest against the Vietnam War. Additionally, she discusses various instances of Quaker civil disobedience in opposition to war and slavery, among other societal evils. At times, court cases have arisen as institutional extensions of the civil disobedience strategy.

American Labor Struggles and Law Histories (Carolina Academic Press), edited by Kenneth Casebeer (mentioned yesterday, here). According to reviewer Richard A. Brisbin, Jr. (West Virginia University), the casebook's coverage is limited (it "focus[es] on the centrality of laborers’ struggles to gain denied power"), but the book remains "useful" and "stimulating." Read more here.

On this blog, we mention Lawrence Friedman and Chris Tomlins a lot -- and yet we missed this review, from the last issue of the LPBR. Follow the link to find out what Friedman thinks Freedom Boundis all about.

The ConIH Committee invites graduate students to submit proposals for the Twelfth Annual Graduate Student Conference on International History to take place at Harvard University in Cambridge, Massachusetts on March 8-9, 2012.

Historical actors have used religion and civilization as potent tools for the creation and recreation of cultural and political identities, as well as other types of social cohesiveness. Studying religion and civilization, as distinct but often closely related concepts, raises questions about the theological underpinnings of the international order and international law, as well as the civilizational references that religious movements use to define their transnational missions within national, imperial, and other supranational frameworks. ConIH consequently invites graduate students from all continents and disciplines to submit studies that explore the international dimensions of religion and civilization.

We welcome submissions that examine religion and civilization in international contexts. Possible paper topics include, but are not limited to, the role of religion and civilization in shaping the relations between states, transnational elites, diasporas, and political and religious minorities; the creation of new orthodoxies and heterodoxies; secularism; imperial frameworks; political resistance; narratives on the ascendancy and decline of civilizations; economic structures; transnational networks; and international development.

There are no temporal or geographic limits to this theme. We expect the conference to cover a diversity of topics that will look at populations from all parts of the world, as well as at ancient, pre-modern, modern, and contemporary contexts. Papers will be selected on the basis of their strength, novelty of subject and interpretation, and utility as bases for historical comparison.

ConIH encourages methodologically innovative approaches and agendas which emphasize long-distance influences, utilize multi-archival and multi-lingual research and offer vistas for historical comparisons across time and space. Perspectives from related disciplines such as law, social science, economics, business, or anthropology are welcome and encouraged. Faculty from Harvard and beyond will provide commentary on the papers [emphasis supplied]. The conference will conclude with a plenary session, at which several leading scholars in the fields of international and global history will discuss broad issues pertaining to the themes and terms of the conference.

Graduate students who are interested in participating in the conference should submit a one-page paper proposal and one-page curriculum vita (in Word, RTF, or PDF format) to conih@fas.harvard.edu. Proposals must be received by December 15, 2011, in order to be considered. Notification of acceptance will be made in January, 2012. For additional information about the conference, please contact the conference organizers at conih@fas.harvard.edu or visit the conference website.

From slave rebellions, to the Lowell Mill girls, to Wisconsin and the Tea Party; this book tells the stories of law and legal action inevitably intersecting the collective actions of workers, in triumph or in anguish, over all of United States history.

Most people assume labor actions are carried out through trade unions and, therefore, that the relevant law of labor is the regulation of a particular form of collective bargaining between the representatives of workers (unions) and the representatives of owners (management). Neither assumption is accurate. It is striking to discover that most of the key labor struggles described in this book started either spontaneously among a group of workers, or at least began out in front of a sometimes unprepared or skeptical national union leadership that had to catch up to its members. Labor has at different times chosen strategies well beyond bargaining backed by strikes, including: consumer information (the union label); boycotts; picketing; small scale and ad hoc control over the tools, speed, and process of work; occupation of industrial plants; cooperative ownership; civil rights actions; independent and/or party politics; mass exodus; or even rebellion.

Not surprisingly, while sometimes invoked by labor as well as management, an amazing range of legal practices have been used by the State in the protection of employer interest and/or the repression of labor. Frequently, law appeared in protection and expansion of the common law prerogatives of property, antitrust legislation applied to unions but not to trusts, criminal and civil conspiracy convictions sustained by courts at all levels through sweeping injunctions prohibiting labor activity, and often use of militia or the U.S. Army explicitly to break strikes.

Importantly, entering law as an intervention in collective struggle inevitably requires a view of law from the bottom up. In contrast, entering law initially via Supreme Court opinions and other elite texts tends to record legal activity as winners-only history. Yet, as American Labor Struggles and Law Histories shows, law is always constructed as one arena of social struggle, channeled and shaped by both winners and losers. The deployment of power in our society has always altered our understandings of the possibility of democracy, particularly as American workers have fought to better their lives.

Monday, December 12, 2011

Eat more kale! is the slogan of a small businessman and folk artist from Montpelier, Vermont. His T-shirt business has grown from tiny to gigantic in the years since he began printing shirts with the slogan emblazoned on them in 2000. Earlier this fall, fast food behemoth Chik-fil-A sent a cease-and-desist letter to the kale guy, arguing that Eat More Kale was too much like the company's own trademarked slogan, "Eat more chikin."

Last week, Vermont Governor Peter Shumlin held a press conference to raise money for the litigation campaign of the Eat More Kale forces. He announced the creation of "Team Kale," which I think is the entire state of Vermont. He made important points, with a pitch-perfect sense of his loca-vore audience, such as "kale is a vegetable, chickens are birds."

Admittedly, the legal history content of this (otherwise extremely significant) story is limited. But there is some law in it, and I just thought people should know. I know that this is a lot more fun than politics at the national level (when will President Obama stand up for the Audacity of Kale? Won't someone ask Newt Gingrich for a new Contract with America -- for a head of kale in every pot?)

This eleven-shilling tempest started in 1786 in a local Court of Requests in Yarmouth, then generated, sequentially, a perjury indictment, three jury trials at the assizes (all before special juries), a jury verdict for £3,000 with costs of £800, an indictment for libeling the public justice of England, and a fourth jury trial (also before a special jury). Among the questions that the proceedings invite are: Why did the parties risk being bankrupted by this seemingly trivial dispute? How open to challenge were jury verdicts? When could a jury verdict be overturned because the damages assessed by the jury were considered by the reviewing court to be excessive? Could a jury verdict be thrown out based on a post-trial affidavit of one or more of the jurors claiming that the verdict had been reached by an improper method? How impressionable were the jurors, even special jurors, in response to the eloquence and forensic skills of the barristers? Who ultimately paid for the preparation and conduct of this pile of proceedings?

Henry Louis Gates's supposedly favorable assessment of Rice's wartime leadership in Life Upon These Shores: Looking at African American History, 1513-2008, is just one reason that David Margolick gives the new book a lukewarm review in this week's N.Y.Times Book Review. The book, a compendium of photographs and entries about the signal events and people in African-American history from 1513 to the election of President Barack Obama, strikes the reviewer as ambitious but seriously deficient. Margolick criticizes Gates's editorial choices, finds numerous factual errors in the 487-page book, and accuses Gates of careless analysis. Life Upon These Shores is "superficial," and "boosterish," the reviewer concludes. That's much less than we should expect from one of America's "most eminent black scholars," says Margolick.